State and Local Government Law Commons^™

Committed To Commitment: The Problem With Washington State’S Involuntary Treatment Act, Hannah Garland

Washington Law Review

Washington State utilizes the Involuntary Treatment Act (ITA) to civilly commit individuals experiencing behavioral health crises. Although civil commitment involves stripping away fundamental rights, it receives less attention than criminal incarceration. The ITA is meant to protect not just the general community, but also the rights of people with behavioral health disorders who utilize the ITA system. Yet, its implementation tells a different story. Individuals in King County are detained and committed repeatedly, without receiving consistent care. Furthermore, the ITA disproportionately impacts unhoused individuals and Black individuals. As the ITA continues to grow both in utilization and expense, other community-based …

When Uncle Sam Spills: A State Regulator’S Guide To Enforcement Actions Against The Federal Government Under The Clean Water Act, Ian M. Staeheli

Washington Law Review

The U.S. government is one of the largest polluters on the planet. With over 700 domestic military bases and countless more federal facilities and vessels operating within state borders, there exists an enormous potential for spills and discharges of pollutants into state waters. The regulatory burden for enforcing environmental laws against the federal government falls on the Environmental Protection Agency and state regulators. But enforcing laws and regulations against the federal government and its progeny is a daunting regulatory task.

Other scholarship addresses some of the vexing peculiarities involved when regulating Uncle Sam. Those works discuss the “confusing mess” that …

The Helicopter State: Misuse Of Parens Patriae Unconstitutionally Precludes Individual And Class Claims, Gabrielle J. Hanna

Washington Law Review

The doctrine of parens patriae allows state attorneys general to represent state citizens in aggregate litigation suits that are, in many ways, similar to class actions and mass-tort actions. Its origins, however, reflect a more modest scope. Parens patriae began as a doctrine allowing the British king to protect those without the ability to protect themselves, including wards and mentally disabled individuals. The rapid expansion of parens patriae standing in the United States may be partly to blame for the relative absence of limiting requirements or even well-developed case law governing parens patriae suits. On the one hand, class actions …

Off-Reservation Treaty Hunting Rights, The Restatement, And The Stevens Treaties, Ann E. Tweedy

Washington Law Review

The underdevelopment of the law of off-reservation treaty hunting and gathering poses challenges for treatises like the groundbreaking Restatement of the Law of American Indians (“Restatement”). With particular attention to sections 83 and 6 of the Restatement, this Article explores those challenges and offers some solutions for dealing with them in subsequent editions of the Restatement. Specifically, this Article explores the potential usefulness of historical law in interpreting treaties, the need to tie treaty interpretation to the language of the treaty when an explicit right is at issue, the proper application of the reserved rights doctrine and the Indian canons, …

Tribal Sovereignty And Economic Efficiency Versus The Courts, Robert J. Miller

Washington Law Review

American Indian reservations are the poorest parts of the United States, and a higher percentage of Indian families across the country live below the poverty line than any other ethnic or racial sector. Indian nations and Indian peoples also suffer from the highest unemployment rates in the country and have the highest substandard housing rates. The vast majority of the over three hundred Indian reservations and the Alaska Native villages do not have functioning economies. This lack of economic activity starves tribal governments of the tax revenues that governments need to function. In response, Indian nations create and operate business …

Is It Time To Bury Barry? Why An Old Change At The Legislature Requires A New Look At Washington's Nondelegation Doctrine, Daniel A. Himebaugh

Washington Law Review Online

Fifty years ago, the Supreme Court of Washington adopted a relaxed version of the nondelegation doctrine in a case called Barry and Barry v. Department of Motor Vehicles. The Barry rule, which only loosely restricts the delegation of policy-making power from the Legislature to other bodies, is now widely applied in Washington State. However, the Barry Court’s reasons for adjusting the nondelegation doctrine were based on an outdated understanding of the Legislature, especially its regular session schedule. While the Legislature’s regular sessions have changed since 1972—becoming longer and more frequent due to constitutional amendment—the Court has not considered how …

The Chorus Doctrine: Promoting Sub-National Diplomacy In Regional Growth Management, Conor J. Mannix

Washington Law Review

Sub-national diplomacy, also known as paradiplomacy, occurs when sub-national actors (think cities or states) engage in international relations, either with other sub-national actors or nation-states. Though typically the province of foreign policy scholarship, paradiplomacy touches on several legal issues, particularly where sovereignty and legal frameworks collide. In the United States, the federal system established by the Constitution gives individual states plenary power but reserves international relations to the federal government through the Supremacy Clause. However, the lines between federal power and state power with regards to international relations remain fuzzy.

Sub-national actors are taking advantage of this lack of sharply …

Race And Washington’S Criminal Justice System: 2021 Report To The Washington Supreme Court, Task Force 2.0

Washington Law Review

RACE & WASHINGTON’S CRIMINAL JUSTICE SYSTEM:

EDITOR’S NOTE

As Editors-in-Chief of the Washington Law Review, Gonzaga Law Review, and Seattle University Law Review, we represent the flagship legal academic publications of each law school in Washington State. Our publications last joined together to publish the findings of the first Task Force on Race and the Criminal Justice System in 2011/12. A decade later, we are honored to join once again to present the findings of Task Force 2.0. Law journals have enabled generations of legal professionals to introduce, vet, and distribute new ideas, critiques of existing legal structures, and reflections …

Reasoning V. Rhetoric: The Strange Case Of “Unconstitutional Beyond A Reasonable Doubt”, Hugh D. Spitzer

Articles

An odd formulation has frequented American constitutional discourse for 125 years: a declaration that courts should not overturn a statute on constitutional grounds unless it is “unconstitutional beyond a reasonable doubt.” This concept has been thought of as a presumption, a standard, a doctrine, or a philosophy of coordinate branch respect and judicial restraint. Yet it has been criticized because “beyond a reasonable doubt” is at root an evidentiary standard of proof in criminal cases rather than a workable theory or standard for deciding constitutional law cases. This article discusses the history and use of “unconstitutional beyond a reasonable doubt,” …

The Euclid Proviso, Ezra Rosser

Washington Law Review

This Article argues that the Euclid Proviso, which allows regional concerns to trump local zoning when required by the general welfare, should play a larger role in zoning’s second century. Traditional zoning operates to severely limit the construction of additional housing. This locks in the advantages of homeowners but at tremendous cost, primarily in the form of unaffordable housing, to those who would like to join the community. State preemption of local zoning defies traditional categorization; it is at once both radically destabilizing and market responsive. But, given the ways in which zoning is a foundational part of the racial …

"Send Freedom House!": A Study In Police Abolition, Tiffany Yang

Washington Law Review

Sparked by the police killings of George Floyd and Breonna Taylor, the 2020 uprisings accelerated a momentum of abolitionist organizing that demands the defunding and dismantling of policing infrastructures. Although a growing body of legal scholarship recognizes abolitionist frameworks when examining conventional proposals for reform, critics mistakenly continue to disregard police abolition as an unrealistic solution. This Essay helps dispel this myth of “impracticality” and illustrates the pragmatism of abolition by identifying a community-driven effort that achieved a meaningful reduction in policing we now take for granted. I detail the history of the Freedom House Ambulance Service, a Black civilian …

The Federal Option: Delaware As A De Facto Agency, Omari Scott Simmons

Washington Law Review

Despite over 200 years of deliberation and debate, the United States has not adopted a federal corporate chartering law. Instead, Delaware is the “Federal Option” for corporate law and adjudication. The contemporary federal corporate chartering debate is, in part, a referendum on its role. Although the federal government has regulated other aspects of interstate commerce and has the power to charter corporations and preempt Delaware pursuant to its Commerce Clause power, it has not done so. Despite the rich and robust scholarly discussion of Delaware’s jurisdictional dominance, its role as a de facto national regulator remains underdeveloped. This Article addresses …

Police Or Pirates? Reforming Washington's Civil Asset Forfeiture System, Jasmin Chigbrow

Washington Law Review

Civil asset forfeiture laws permit police officers to seize property they suspect is connected to criminal activity and sell or retain the property for the police department’s use. In many states, including Washington, civil forfeiture occurs independent of any criminal case—many property owners are never charged with the offense police allege occurred. Because the government is not required to file criminal charges, property owners facing civil forfeiture lack the constitutional safeguards normally guaranteed to defendants in the criminal justice system: the right to an attorney, the presumption of innocence, the government’s burden to prove its case beyond a reasonable doubt, …

Beyond “Children Are Different”: The Revolution In Juvenile Intake And Sentencing, Josh Gupta-Kagan

Washington Law Review

For more than 120 years, juvenile justice law has not substantively defined the core questions in most delinquency cases—when should the state prosecute children rather than divert them from the court system (the intake decision), and what should the state do with children once they are convicted (the sentencing decision)? Instead, the law has granted certain legal actors wide discretion over these decisions, namely prosecutors at intake and judges at sentencing. This Article identifies and analyzes an essential reform trend changing that reality: legislation, enacted in at least eight states in the 2010s, to limit when children can be prosecuted …

Water Banks In Washington State: A Tool For Climate Resilience, Jennifer J. Seely

Washington Law Review

Water banks—a tool for exchanging senior water rights and offsetting new ones—can address multiple problems in contemporary water law. In the era of climate change, water banks enable needed flexibility and resilience in water allocation. As growing cities require new water rights, water banks can repurpose old water for new uses. These advantages should lead the Washington State Legislature to incentivize water banks, but in the 2018 “Hirst fix” it embraced habitat restoration as a false equivalent for water. The Legislature is rightfully concerned about the speculation that some private water banks allow. But overall, water banks enable new and …

Inheritance Crimes, David Horton, Reid Kress Weisbord

Washington Law Review

The civil justice system has long struggled to resolve disputes over end-of-life transfers. The two most common grounds for challenging the validity of a gift, will, or trust— mental incapacity and undue influence—are vague, hinge on the state of mind of a dead person, and allow factfinders to substitute their own norms and preferences for the donor’s intent. In addition, the slayer doctrine—which prohibits killers from inheriting from their victims—has generated decades of constitutional challenges.

But recently, these controversial rules have migrated into an area where the stakes are significantly higher: the criminal justice system. For example, states have criminalized …

“Unconstitutional Beyond A Reasonable Doubt” – A Misleading Mantra That Should Be Gone For Good, Hugh Spitzer

Washington Law Review Online

For a century, Washington State Supreme Court opinions periodically have intoned that the body will not invalidate a statute on constitutional grounds unless it is “unconstitutional beyond a reasonable doubt.” This odd declaration invokes an evidentiary standard of proof as a rule of decision for a legal question of constitutionality, and it confuses practitioners and the public alike. “Unconstitutional beyond a reasonable doubt” is not peculiar to Washington State. Indeed, it began appearing in state court decisions in the early nineteenth century and, rarely, in opinions of the United States Supreme Court. But the use of the phrase rapidly increased …

Protecting Patients From Physicians Who Inflict Harm: New Legal Resources For State Medical Boards, Elizabeth Pendo, Tristan Mcintosh, Heidi A. Walsh, Kari Baldwin, James M. Dubois

Articles

State medical boards (SMBs) protect the public by ensuring that physicians uphold appropriate standards of care and ethical practice. Despite this clear purpose, egregious types of wrongdoing by physicians are alarmingly frequent, harmful, and under-reported. Even when egregious wrongdoing is reported to SMBs, it is unclear why SMBs sometimes fail to promptly remove seriously offending physicians from practice. Legal and policy tools that are targeted, well-informed, and actionable are urgently needed to help SMBs more effectively protect patients from egregious wrongdoing by physicians.

Past reviews of SMB performance have identified features of SMBs associated with higher rates of severe disciplinary …

The Thickness Of Blood: Article I, Section 7, Law Enforcement, And Commercial Dna Databases, Hannah Parman

Washington Law Review

Law enforcement agencies increasingly use online commercial and open source DNA databases to identify suspects in cases that have long since gone cold. By uploading crime scene DNA to one of these websites, investigators can find family members who have used the website and build a family tree leading back to the owner of the original DNA. This is called “familial DNA searching.” The highest profile use of this investigative method to date occurred in California, but law enforcement in Washington State has been quick to begin utilizing the method as well. However, article I, section 7 of the Washington …

Rethinking Emergency Legislation In Washington State, Eva Sharf

Washington Law Review

The people’s right to referendum in Washington State is substantively limited in only one way: the people cannot block through referendum “such laws as may be necessary for the immediate preservation of the public peace, health or safety, support of the state government and its existing public institutions.” This emergency exception to the referendum power must be explicitly invoked by the Washington State Legislature in what is called an “emergency clause.” Washington courts are willing to review emergency clauses to determine if a bill is, in fact, “necessary for the immediate preservation of the public peace, health or safety.” However, …

The New Sister-State Sovereign Immunity, Michael H. Hoffheimer

Washington Law Review

The Article reviews the constitutional status of sister-state sovereign immunity. It argues that the parity requirement announced in Franchise Tax Board v. Hyatt (2016) is a temporary compromise that is supported by neither the purposes of the Full Faith and Credit Clause nor by cases cited by the Court. It further argues that parity is bad policy because parity overprotects states for acts they commit beyond their borders and under protects the interests of forum states in regulating conduct within their territorial jurisdiction. But the Article breaks from most scholarship. It suggests that the Court went too far in Nevada …

Driverless Seattle: How Cities Can Plan For Automated Vehicles, Matthew Bellinger, Ryan Calo, Brooks Lindsay, Emily Mcreynolds, Mackenzie Olson, Gaites Swanson, Boyang Sa, Feiyang Sun

Tech Policy Lab

The advent of automated vehicles (AVs)—also known as driverless or self-driving cars—alters many assumptions about automotive travel. Foremost, of course, is the assumption that a vehicle requires a driver: a human occupant who controls the direction and speed of the vehicle, who is responsible for attentively monitoring the vehicle's environment, and who is liable for most accidents involving the vehicle. By changing these and other fundamentals of transportation, AV technologies present opportunities but also challenges for policymakers across a wide range of legal and policy areas. To address these challenges, federal and state governments are already developing regulations and guidelines …

The Vested Rights Doctrine: How A Shield Against Injustice Became A Sword For Opportunistic Developers, Steve P. Calandrillo, Chryssa Deliganis, Christina Elles

Articles

In an era of pioneering environmental and land use laws, savvy developers are using the “vested rights” doctrine to circumvent and undermine critical public health, safety, and environmental regulations. This controversy pits two legitimate interests against each other: On the one hand, local governments must have the power to pass land use laws and regulations in the public interest to protect their community’s health, safety, welfare, and environment. On the other, developers who rely on the laws in existence at the time their project is approved should be protected from subsequent changes to the law that could increase transactional costs …

Seattle Surveillance Ordinance Memo, Christopher Stevenson

Technology Law and Public Policy Clinic

No abstract provided.

Surveillance Policy Making By Procurement, Catherine Crump

Washington Law Review

In Seattle, the police obtained a surveillance drone with the approval of a city council that did not realize what it was doing. In Oakland, following a council review that lasted literally two minutes, the city created a data integration center that networked together all of its existing surveillance infrastructure. In San Diego, elected representatives were only dimly aware that the law enforcement agency they supervised had built and deployed innovative facial recognition technology. In an age of heightened concern about the militarization of local police and surveillance technology, how do local law enforcement agencies obtain cutting edge and potentially …

Taxes And Ability To Pay In Municipal Bankruptcy, John Patrick Hunt

Washington Law Review

Scholars and commentators have argued that municipalities can and should use bankruptcy to shed unwanted liabilities, particularly employee healthcare and pension commitments. Courts increasingly have agreed: Detroit’s approved bankruptcy plan cut pensions, and the bankruptcy court overseeing the bankruptcy of Stockton, California brought down barriers to pension-cutting. Both courts found their way around state provisions arguably protecting municipal pensions. Now that pension-cutting in bankruptcy has momentum, we can expect to hear arguments for using bankruptcy not just in cases like Detroit and Stockton where the municipality cannot meet all its obligations, but also in cases where residents or politicians come …

Taxes And Ability To Pay In Municipal Bankruptcy, John Patrick Hunt

Washington Law Review

Scholars and commentators have argued that municipalities can and should use bankruptcy to shed unwanted liabilities, particularly employee healthcare and pension commitments. Courts increasingly have agreed: Detroit’s approved bankruptcy plan cut pensions, and the bankruptcy court overseeing the bankruptcy of Stockton, California brought down barriers to pension-cutting. Both courts found their way around state provisions arguably protecting municipal pensions. Now that pension-cutting in bankruptcy has momentum, we can expect to hear arguments for using bankruptcy not just in cases like Detroit and Stockton where the municipality cannot meet all its obligations, but also in cases where residents or politicians come …

Realigning The Governmental/Proprietary Distinction In Municipal Law, Hugh D. Spitzer

Articles

Lawyers and judges who deal with municipal law are perpetually puzzled by the distinction between “governmental” and “proprietary” powers of local governments. The distinction is murky, inconsistent between jurisdictions, inconsistent within jurisdictions, and of limited use in predicting how courts will rule. Critics have launched convincing attacks on the division of municipal powers into these two categories. Most articles have focused on problems with the distinction in specific areas of municipal law. In contrast, this article provides a comprehensive analysis of the governmental/proprietary distinction in seven specific doctrinal areas: legislative grants of municipal authority, government contracts, torts, eminent domain, adverse …

The Case For Revisiting Contingent Liabilities Under Article Viii, Joshua Hansen-King

Washington Law Review Online

Prior to 2012, Washington municipalities frequently relied on contingentliability agreements (“CLA” or “CLAs”) to reduce borrowing costs because such liabilities did not constitute debt under article VIII of the Washington State Constitution. But the viability of CLAs was called into question by the Washington State Supreme Court’s 2012 plurality decision in In re Bond Issuance of Greater Wenatchee Regional Events Center Public Facilities District (“Wenatchee Events Center”), which applied a new method for determining what constitutes debt—the risk-of-loss principle—to conclude that the entire value of a CLA constitutes debt. This Essay urges the Court to revisit the opinion because the …

"Home Rule" Vs. "Dillon's Rule" For Washington Cities, Hugh D. Spitzer

Articles

This Article focuses on the tension between the late-nineteenth-century “Dillon’s Rule” limiting city powers, and the “home rule” approach that gained traction in the early and mid-twentieth century. Washington’s constitution allows cities to exercise all the police powers possessed by the state government, so long as local regulations do not conflict with general laws. The constitution also vests charter cities with control over their form of government. But all city powers are subject to “general laws” adopted by the legislature. Further, judicial rulings on city powers to provide public services have fluctuated, ranging from decisions citing the “Dillon’s Rule” doctrine …